Whistleblower protection reform required to ensure public sector integrity

But while there has been much talk about stronger protections for whistleblowers, the reform agenda remains a work in progress. With less than a year until the next federal election, and following a significant recent court decision narrowing the scope of public sector whistleblower protections, now is an apt moment to run the rule over the whistleblowing landscape in the APS and beyond.

By way of refresher, the Public Interest Disclosure Act 2013 established a comprehensive whistleblowing framework for federal public servants and contractors. It sets out pathways for whistleblowers to speak up about a variety of wrongdoing within government. Public servants can blow the whistle internally, to their supervisor or designated officers, to oversight bodies such as the Commonwealth Ombudsman, and in certain limited circumstances, publicly - including to the media.

When whistleblowers speak up, they attract protections. Whistleblowers are immune from liability for blowing the whistle, and if they suffer retaliation, they can sue for compensation. The scheme also sets out requirements for agencies to investigate the alleged wrongdoing.

Unfortunately the scheme, which looked good on paper in 2013, has not lived up to its promise - bedevilled by confusion and complexity. The Albanese government enacted minor technical reforms last June, and is currently undertaking a second more substantive round of reform likely to lead to a major rewrite of the PID Act. In a consultation paper released late last year, the Attorney-General's Department also canvassed improved oversight, enforcement and support arrangements - including consideration of whether to establish a whistleblower protection authority (a body which has previously been recommended by several reviews and inquiries, and was a Labor election promise in 2019).

One critical aspect of reform will be a response to the South Australian Court of Appeal's decision in the case of tax office whistleblower Richard Boyle. In June, the court ruled Boyle is not protected from prosecution by the PID Act, because he is charged with offences relating to conduct leading up to his whistleblowing. The court held the immunity is narrow, applying only to the actual act of blowing the whistle and not any preparatory conduct, no matter how essential. While there must be some outer limit, of course, in our respectful view the court's decision does not accord with the practical realities of whistleblowing.

Whistleblower protections are one side of the transparency and accountability coin. The immunity offered by the PID Act offers protection from liability, criminal, civil or administrative (albeit now narrowed by the Boyle judgment). That liability otherwise stems primarily from secrecy laws and confidentiality provisions applicable to public servants. This other side of the coin is therefore just as important as robust whistleblowing laws.

A review by the Attorney-General's Department last year found almost 1000 distinct secrecy offences and non-disclosure duties in federal law - an astonishing number of ways in which public servants can face liability for disclosing government information. The department recommended a series of reform and a focus on repealing specific offences and relying instead on general, catch-all provisions in the Criminal Code. The government has accepted these recommendations and work towards amendments is ongoing.

A more strident wake-up call to the troubling state of Australia's secrecy laws came last month, when the Independent National Security Legislation Monitor, Jake Blight, released a report into the general secrecy offence framework. The monitor raised numerous serious concerns about the framework's compatibility with the rule of law and human rights, and recommended the Criminal Code offences be narrowed and clarified.

The lowest-tier secrecy offence in the Criminal Code, which applies to any public servant for releasing government information when they are under any legal confidentiality obligation (effectively the entirety of the APS), is due to sunset at the end of this year. The Attorney-General's Department review suggested this provision be expanded to have wider application to those who engage with government to cover situations such as the PwC leaks - albeit the breadth of the changes suggested have been met with alarm by some civil society groups.

Public sector accountability is also closely connected with Australia's wider whistleblower protections regime, given the increasingly frequent intersection between the public and private sectors, including the use of contractors. From this month, Treasury is required to begin a statutory review of the private sector whistleblower protections in the Corporations Act 2001. These protections were substantially updated in 2019 and cover almost the entirety of the nation's non-public sector workforce.

The review is also likely to take stock of increasingly fragmented sector-specific protections. There are presently distinct whistleblower protections in laws covering unions, aged care, the National Disability Insurance Scheme, Aboriginal corporations and tax - the latter has recently been beefed up following the PwC leaks scandal, while the Aged Care Royal Commission has precipitated the development of draft reform to those protections.

There is no need for such a complex framework for whistleblowers in Australia; the patchwork quilt confuses whistleblowers and adds red tape for businesses - some whistleblowers, and their employers, might be covered by multiple, overlapping, inconsistent frameworks, some might be covered by none at all. Making matters worse, many regulators have no protected whistleblower channels - which mean whistleblowers are funnelled towards certain regulators (such as ASIC), without the appropriate jurisdiction.

Whistleblowers play a vital role in Australia's integrity framework. We both act regularly for public servants seeking to do the right thing and speak up about wrongdoing that risks undermining public trust in the APS. Regrettably, despite some recent minor changes, the whistleblower framework - for public servants and beyond - is not fit for purpose.

But change is in the air. There is much to be done and a busy reform agenda ahead. We can only hope the current government, and whoever is elected come next year, grasps this once-in-a-generation opportunity to enact comprehensive, best-practice protections, better calibrate secrecy offences and establish a whistleblower protection authority.

That would leave a lasting transparency legacy.